The Deputy Commissioner Of Sales … vs Phair Laboratories on 21 February, 1979

Kerala High Court
The Deputy Commissioner Of Sales … vs Phair Laboratories on 21 February, 1979
Equivalent citations: 1980 45 STC 103 Ker
Author: V G Nambiyar
Bench: V G Nambiyar, G B Nair


V.P. Gopalan Nambiyar, C.J.

1.The common order of the Sales Tax Appellate Tribunal in these five cases cannot be supported. All these tax revision cases were filed against the orders of assessment passed by the Assistant Commissioner. The Deputy Commissioner, who dealt with the appeals, dismissed the appeals as having been preferred out of time and on the ground that no case had been shown to excuse the delay in filing the appeals. Under Section 34(1) of the Act, which provides for appeals, appeals had to be preferred within thirty days from the date on which the order is served on the party. Under the first proviso thereto, there is power on the appellate authority if so satisfied that there was sufficient cause in not presenting the appeal, to excuse the delay in filing the appeals. In the light of this provision, the Deputy Commissioner, who dealt with the appeal, observed:

I have heard Sri Gopalakrishnan of M/s. Venkitachalam Iyer & Co., Chartered Accountants, Kottayam. He reiterated the statements made in the petition. It is well-settled that where a period of limitation is fixed by the statute every day’s delaying has to be reasonably explained. The Receiver is a lawyer and normally he must be conversant with the legal procedure as well as implications of assessment order. No proper affidavit has been filed by him stating the reasons for not filing the appeals within the period of limitation. The petition submitted is very delightfully vague as to crucial dates. The name of the partner, who advised him to file appeals, the date on which he was consulted and the reasons why he did not think it necessary to consult the partner earlier were not stated. There are very clear laches on the part of the appellants in prosecuting the remedy available to them. I am therefore not satisfied that the appellants were prevented by sufficient cause from not filing the appeals within the period of limitation prescribed by the statute. I therefore dismiss the petitions. Consequently, all the five appeals stand dismissed.

2. Further appeals were taken to the Sales Tax Appellate Tribunal. The Tribunal noticed the above portion of the Deputy Commissioner’s order, and then recorded that it was not prepared to find fault with the learned Deputy Commissioner for dismissing the applications to excuse the delay. Having said so, strangely enough, the Tribunal remarked as follows:

But at the time of hearing of these second appeals, the learned counsel for the appellants, Sri Sreekrishnan, has submitted “before us that since the learned Deputy Commissioner has observed that not even an affidavit has been filed in support of the applications filed by the appellants for condoning the delay, the appellants may be given an opportunity to file proper affidavit from the Receiver as well as from the partners of the firm explaining the circumstances under which the delay has been caused. Since the learned Deputy Commissioner has not given such an opportunity, even though the burden of proof is on the appellants, we feel that the request of the learned counsel is reasonable and, therefore, without making any observation on the merits, we are setting aside the orders of the learned Deputy Commissioner (Appeals), and remitting the files back to him directing him to rehear the matters after giving the appellants an opportunity to file affidavits or produce other evidence in support of their applications filed for condoning the delay in filing the first appeals. If the learned Deputy Commissioner (Appeals) is satisfied that the delay has been caused on reasonable grounds, he will condone the same and hear and dispose of the appeals on merits.

3. The course followed by the Tribunal was illegal and unwarranted. The Tribunal should not have set aside the order of the Deputy Commissioner without any ground or reason for doing so, and only to allow the party before it to produce an additional affidavit before the appellate authority. It was open to the Appellate Tribunal, if so advised, and if a proper case had been made out, to receive fresh evidence in appeal under regulation 48 of the Appellate Tribunal Regulations; and, in the light of such additional evidence received by it, to dispose of the appeal itself. Without following this course, the Appellate Tribunal was not justified in law in setting aside the orders of the Deputy Commissioner and remanding the matter for fresh disposal. This has been pointed out recently by this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Castle Rock Fisheries [1980] 45 S.T.C. 101 (T.R.C. No. 23 of 1978).

4. We allow these tax revision cases and remit the appeals back to the Appellate Tribunal for fresh disposal in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs.

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